from the but-what-about-the-copyrights? dept

We've written numerous times about the famed mashup artist Girl Talk (Gregg Gillis), who has created some extremely popular and well-reviewed albums by mashing up hundreds of songs together into songs that sound both entirely new, and which give appreciative nods towards the originals. Girl Talk has won various awards and has even been mentioned in Congress by Rep. Mike Doyle, as an example of why copyright should allow more such mashups and remixes, rather than having it crack down on the practice. And, of course, there's also been an excellent movie about Girl Talk, called RiP: A Remix Manifesto, which I encourage people to watch if they haven't seen it yet.

Of course, there are all sorts of copyright questions around this. Some folks are stunned that Gillis hasn't been sued over his widespread sampling. There are a variety of theories as to why that might be -- from the idea that Gillis' use might actually cause courts to recognize that such sampling should be fair use, to the theory that the music industry doesn't go after Gillis because he's "white, middle-class and educated," as opposed to those who often do find themselves on the receiving end of sampling lawsuits.

Even if you're not a fan of Girl Talk's music, the idea -- "an epic, 71-minute-long dance-music video" -- is pretty cool. It's tough to watch the video and not smile, just in general, at the joy it expresses (my favorite part is right in the middle where a woman in the background, who is clearly just a bystander, starts dancing along as well). The filmmaker, Jacob Krupnick, has also put up a Kickstarter page for the project, and it's more than met its goal (it had already, but I'm sure the NYT Magazine article has only helped it get a lot more money too).

What struck me as interesting wasn't just that Krupnick wanted to make a movie based on All Day, but that a lot of his inspiration came from both RiP: Remix a Manifesto and having briefly worked with the lead dancer, Anne Marsen, in a video shoot for a commercial a year and a half ago. As the article recounts, Marsen is a classically trained ballet dancer, who dropped out of the University of the Arts and has since:

gone rogue, dance-wise, taking three or four classes a day from studios all over New York City -- jazz, modern, tap, salsa, flamenco, belly-dancing, break-≠dancing, West African, pole dancing, capoeira -- borrowing gestures and movements and boiling them all down into her own unique B-girl bouillabaisse.

Basically, she mixes a variety of different styles in a somewhat freelance manner. Krupnick had been looking for another project to work with Marsen on, and when he heard the latest Girl Talk album, he realized the basic similarities in style:

As Krupnick listened to the album, it struck him that Girl Talk makes music the way Anne Marsen makes dance. "I started to hyperventilate a little bit, the way you do when you get excited about something that you really want to come true," he told me.

And this is how art gets created. Of course, it's interesting that no one questions Marsen for mixing all different kinds of dances that she's learned from others into her own style -- but when Girl Talk does it, people complain about how it's "stealing" and "infringing." Either way, take these two individuals (along with a supporting cast) and you get this entirely new and entertaining movie as well.

Derivative art creating derivative art.

That this goes against the claims of copyright maximalists will, undoubtedly, be ignored by those copyright maximalists. Of course, there's a separate question here: which is what about the copyright on the film. Gillis releases all of the Girl Talk stuff under a Creative Commons license. But, it's a license that does not allow for commercial use (which some find hypocritical on his part). I doubt he would object to the film (if he did, the social backlash would likely be quite strong), but given that Krupnick is raising money via Kickstarter, someone could make an argument that this is "commercial use." Separately, if Krupnick actually tries to do something more with the movie, he'll almost certainly not be able to get E&O (errors and omissions insurance). Last year, I covered the ridiculous difficulty that RiP's filmmaker, Brett Gaylor had to go through trying to get insurance for his film -- showing us his massive spreadsheet of samples he tried to clear, before giving up.

But the bigger question is whether or not any of the copyright holders on the music Girl Talk uses would decide to step in as well. While they might not have sued Gillis, there's nothing saying that they have to let this movie go forward. Beyond the copyright issues in the samples in the album itself, now Krupnick also has to worry about synch rights, which appear to be one of the lower levels of hell according to various filmmakers I've dealt with in the past.

One can hope, that as with Gillis' original works, that any rights holders know better than to call the lawyers -- and it would be a great story if that actually happens. But, I certainly wouldn't be surprised (though, I'd be very disappointed) if this wonderful idea for a film runs into legal problems. Assuming that happens, it'll be yet another example of copyright not inspiring new creative works, but stifling them (though inspiring legal fees).

more like...

Dance moves vs music scores

There's a really good point about the inconsistencies in intellectual property. As far as I can tell there is no comparable intellectual property 'protection' for dance moves compared to music scores. Even if Girl Talk merely covered parts of songs then they would likely be liable for royalties. I have to wonder if anyone who claims to understand why royalties are needed for cover versions of songs would be able to explain why the same doesn't apply for dancing.

I guess in this case it wouldn't make a difference either way, as her style is a bit like free jazz, but it brings up an interesting issue. I would like to hear reasons from pro-IP people as to why dance should or shouldn't be protected by intellectual property law.

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Everything has been done in everything for years. That's all culture and art are. A process. One step enabling another step, ad infinitum. Pre-Internet, all this remained below the surface, but post-Internet and well . . . .

The next ten years are going to be brilliant for culture and the arts. Thanks Internet.

I think one of the reasons no one has sued Girl Talk is that the financial incentives just aren't there.

If he uses clips from 100 different acts in his mashups, each act is going to have a hard time attributing any of his profits to *their* work, and that's before addressing the fact that he doesn't actually sell recordings.

Maximum statutory damages for one or two songs aren't going to cover attorney fees if he fights it (and he would likely get some free representation).

That plus the fact that he has a decent fair use case means (a) there's a chance the legal fees will be spent for nothing, and (b) even if the plaintiff wins it's not a very strong case for getting attorneys' fees paid.

Re: RtB

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HOW???

How is it like that??

Do the original songs no longer exist? Is your mp3/cd/vinyl of Jay-Z now magically converted into the Girl Talk song that samples him?

Or is it that if you reference your fondness for Jay-Z, or try and talk about what he means to you, that people won't understand, or will mentally plug in the name "Girl Talk" over your references and talk at cross purposes?

Or is it that the meaning, the function, the purpose of Jay-Z's song is undermined, withered, defeated?

In what actual tangible sense is any of the art here actually affected - actually infringed upon - by this new music, EXCEPT in a financial sense?

Re: Re: Dance moves vs music scores

"dance choreography is subject to copyright protection."

You're right. I had thought the protection wasn't the same but apparently it's just not used much.

Still, I think there's an interesting issue here of why musicians seem so sue happy compared to dancers. Mike suggests in the article that her use of moves learnt from various schools is kinda like remixing, but perhaps the key difference is that she is performing dance moves rather than using excerpts from other dancers videos. The issue of royalties remains though, shouldn't dancers have a royalty system like musicians do? Shouldn't every establishment with a dance floor be required to pay an agency in case a copyrighted dance be performed?

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Voices of the Lifestream from the OC/ReMix project. The OC/ReMix project does a lot of crazy things with game soundtracks that add to the experience, as did Nobuo Uematsu for Squaresoft during the Final Fantasy games.

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We all know it's not about integrity or pride of ownership or protecting the work of artists; it's about a lawyer(s) getting paid. That appears to be the only possible incentive.

Welcome to the detriment of society in exchange for a court appearance and a big fat payday for the legal team who apparently are the only ones that have figured out that it doesn't matter which side they are on - they will get paid. Like mercenaries who start a war then raise their hand to offer their services for whichever side is willing to pay. You don't have to win - you just have to participate and the money will come regardless of your work or effort.

The losing attorney should get the "Participant" ribbon in civil suits - that might keep some of the frivolous lawsuits off the docket!

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"We all know it's not about integrity or pride of ownership or protecting the work of artists; it's about a lawyer(s) getting paid. That appears to be the only possible incentive."

Um...it's rarely about a lawyer getting paid. It's always (or almost always) about a client getting paid. Client's don't often say "Go ahead and sue! As long as you get paid, I'm happy to put a lot of effort into something that brings me no benefit!"

Now, most lawyers aren't going to sue for free (even those that work for nonprofits), but the lawyer having a reasonable prospect of getting paid is usually a necessary but not sufficient condition.

Re: Missed the mark....

Just, FYI, "the entire point of the debate" is not just whatever you want to talk about.

The article, and many of the comments, have focused on other, similarly valuable points.

Now, as to YOUR point, there's a tough line to draw. If I want to resell Jay-Z's entire album, with a tiny snippet of my own stuff mixed in at the end, should I be able to without any license from Jay-Z? I think even the most minimal of copyright minimalists (as opposed to abolitionists) would say no. If that's the case, then the line-drawing gets tough.

Re: Dance moves vs music scores

The issue is that copyright protects "original works of authorship expressed fixed in any tangible medium of expression," including "musical works, including any accompanying words," "sound recordings," and "choreographic works." 17 USC Sec. 102. All music and all dance is protectable by copyright, so long as it is sufficiently original and is "fixed in a tangible medium of expression," i.e., written down.

Re: Re: Missed the mark....

There's a balance somewhere between the two. I think you should absolutely be able to do that. I also believe that, should you do that, you should absolutely be liable for any problems that you cause yourself.

Which is why I dislike the attitudes of the MAFIAA, which essentially boils down to, "We're not making enough money! We need stricter laws!"

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Nice spin, but not quite.

If my house was copyrighted, you wouldn't be allowed to make a "very similar one that could easily cause confusion". Then you just add bits and pieces from other houses to try to hide the copyright theft you're doing.

yes

Actually the fact that MOST businesses around/in America exists only for profit is what killed them. The rabbit hole that is minimal expense maximize profit is what has led the way to corporate America. Its a disease in IMO, just like gambling etc its never enough.

People are busy trying to survive so they find the best way to use their money all the while think tanks smear media an junk everywhere making living quite the joke..problem is its on the people. If that were not the case, then this whole discussion would just be hypothetical.

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The difference is that the only ones really going the litigious route are those who've made their money off a broken system. They're the ones with the deepest pockets. Why do you think most smaller companies settle instead of trying to fight in court? (Hint: it's not because they may be in the wrong).

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they're still doing it wrong.
the question should not be 'how much money am i getting from this' it should be 'is this action going to lead to a gain on any level that justifies it's costs on all levels?'. that's not just a cash question. if a company already makes a profit, making a Bigger profit by screwing over the world and people around you will usually have a 'no' answer to this question, btw.

all too often the answer in these music/IP related situations is 'no', but they do it anyway.

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I'm more than familiar with mash-ups. It's a cute novelty. I've yet to hear one whose sum is better than its parts.

I've heard several that are better. In fact, I rarely enjoy hip hop unless it's divorced from the usual, low-bpm 808 beats. I would almost say you're predisposed against mashups for whatever reason. I'm going out on a limb here and figuring you've never listened to the Kleptones before. Check out "A Night at the Hip Hopera" which mashes up about a decade's worth of hip hop with a Queen album. Truly inspired. And inspiring.

And considering all the musical hooks in these things were written by other people, shouldn't those other people be credited as co-writers?

Most mashup artists make no pretense about claiming writing credit or anything like that. They're building on pre-existing work and they're smart enough to know that. They also know they'll never be able to sell these albums, so that's half a deck stacked against them from the get-go. But still they do it. Why? I'm guessing it's because they honestly love music.

There are lots of music labels out there that don't love music. They love "product" and "sales." Consequently, they produce miserable, calculated "artistry." Mashups destroy all those fake confines and cut "product" adrift from its mooring. Music rarely sounds as alive as it does in the hands of a capable mashup artist.

Who else comes up with ideas like 50 Cent talking up his game over Jan Hammer's Miami Vice theme? Or Missy talking sexual smack over Cake's alterna-rock? Or the Black Francis screaming "UH!" like a choir full of whores over the top of Martin Solveig's electro-breaks with added lyrical accompaniment from Peter, Bjorn and John? Certainly not the artists themselves.

Don't sell these craftsmen short just because they play around with your favorite tracks or assume they lack creativity because they didn't write the sheet music.

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It doesn't take away the fact that they're building on other people's work. It's like me building a second story over your house, while you still live there.

No, it's like someone borrowing your window and someone else's door and the front walk from your mutual neighbor and a mailbox from the guy across the street who's always stealing your newspaper and stealing that newspaper back along with some decent shrubbery and using the same paint color as the corner house and the shingles of the house behind you and the garage doors from two blocks away and the naked cherub fountain from the courthouse and the stern street number font of the cop shop and the spiral staircase from that one movie you saw and the exit signs from the local theater and the car seats from the soccer mom's minivan and that stoner's stereo and mom's couch and grandma's collector's plates and Uncle Jim's junked Olds and the 12th hole green from the nearest golf course and all the ideas of a meth-addled feng shui consultant and some ideas from your local architect as improved on by your 4-year-old's idea of what a real house looks like viewed through a combination 3-D glasses/kaleidescope.

Girl talk

Not to get off topic, but the nut had a follow story where Gillis talks about how he has distributed his music. It sounds like the model that has been discussed here so often. Gillis sold his first 2 CDs traditionally, charging 10 bucks a pop. Then he tried a pay what you want model. Then he went to a totally free model with no option to pay at all. The writer of the article seemed amazed that Gillis could make money. Of course Gillis replied that he made money from touring and merchandise sales! Too bad the author totally glossed over this model of doing business.

Girl talk

Not to get off topic, but the nut had a follow story where Gillis talks about how he has distributed his music. It sounds like the model that has been discussed here so often. Gillis sold his first 2 CDs traditionally, charging 10 bucks a pop. Then he tried a pay what you want model. Then he went to a totally free model with no option to pay at all. The writer of the article seemed amazed that Gillis could make money. Of course Gillis replied that he made money from touring and merchandise sales! Too bad the author totally glossed over this model of doing business.

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Sort of more like he ripped all those things off of other people's houses and cars. There isn't really anything original here, he adds little except the ability to mix. But it is like a bricklayer claiming to be a great plumber, when all he did was put bricks on the front of the house. It's a fail.

For me, it's the biggest damnation of "current culture" because they have stopped being truly creative and settled for second best recycling. They no longer are impressed by a great painting, but they are impressed with the guy sweeping up the studio once the artist left.

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Since the scenario seems foreign to you, I'm guessing you've never been in that type of meeting.

When decisions are made just because there is a legal avenue available, rather than taking a step back and actually evaluating what is going on and how it might even have a positive effect for your company, you end up with perfectly good money going to the legal team which could have gone into actual development, innovation, and/or salaries for the people who actually contribute to the companies bottom line.

Far too often we see companies take legal action simply because they can and not even consider other ways to resolve a perceived threat or even possibly accept a beneficial circumstance brought about by a third party.

The mentality of shoot first and ask questions later rarely works to the shooters benefit.

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Did you have any examples of this "non-current", wholly original art that you speak so highly of? Or maybe you could indicate which year you believe culture began to take a turn for the worse? (i.e. became "current" and therefore, worthless...)

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"When decisions are made just because there is a legal avenue available, rather than taking a step back and actually evaluating what is going on and how it might even have a positive effect for your company, you end up with perfectly good money going to the legal team which could have gone into actual development, innovation, and/or salaries for the people who actually contribute to the companies bottom line."

Sure. In case you missed it the several times I've explicitly stated this, my point is that this doesn't happen all that often.

I'll be the first to admit that sometimes companies make bad decisions, and that includes litigating when they shouldn't. But that's usually based on a misperception of the costs/benefits, not simply because they *can* or because they only care about lawyers getting paid.

If you'll recall, that is what this thread started off being about.

If you have some reason to believe that people are deciding to sue simply because they can and they want lawyers to get paid, please explain, but simply saying that it happens or creating a fictional dialogue in which it happens is not very convincing.

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Because the odds are unwoefully stacked against them? You have statutory damages that just ONE infringement unfairly bankrupts you, you have the innocent infringer defense that still takes a good chunk of your income, and you have lawyers that take away any money where you can't really represent yourself in civil court.

I could go on, but the litigious route is the first signal that your business is failing. If you have to sue your customers, you're doing it wrong.

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"If you have some reason to believe that people are deciding to sue simply because they can and they want lawyers to get paid, please explain, but simply saying that it happens or creating a fictional dialogue in which it happens is not very convincing."

The dialogue is based on personal first-hand experience. While not a word for word transcript, this scenario actually happened right in front of me. When I questioned the motive behind the action being taken I was told, literally, "That's what they get paid to do."

Despite a no-cost benefit that resulted in some fantastic exposure, the legal team was sent hunting.

Please don't misunderstand, there is a time and place for legal action but todays litigious society (US) is far from prudent about deciding when to use their legal resources.

Re: OC ReMix

I've been a member of www.OCReMix.org for years. The site is built around creative reinterpretations of video game music. I credit OCR with my ability to now write and produce music full-time. For what it's worth, I was the one that directed Voices of the Lifestream (mentioned earlier.) Derivative works? By some definitions, yes. We also don't make any money from these albums or remixes, or ad revenue for that matter. We draw the line at non-commercial usage.

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>> putting a monetary gain for a mashup really does stifle derivative works.

SOLUTION: create ORIGINAL works, instead of derivative ones. That is what the framers intended to promote when they wrote the constitution... While recognizing that the protections of copyright should exist for limited times.

And yes, we can argue all day about HOW LIMITED those tim frames should be.....